closing-resolutions

# Closing Resolutions

Drafts ACTION BY UNANIMOUS WRITTEN CONSENT resolutions for a buyer or seller entity in a US asset purchase transaction.

## Prerequisites

Gather before drafting:

- Executed or near-final APA with exact party names, closing date, defined terms
- Entity type: corporation (board) or LLC (members/managers)
- Organizational documents (articles/certificate, bylaws or operating agreement) to confirm consent-in-lieu authority and approval thresholds
- Closing checklist of ancillary documents (bill of sale, assignment & assumption, TSA, non-competes, escrow agreement, etc.)
- Role designation: buyer or seller
- Governing body roster: names and titles of all directors or members/managers who must sign

## Quick Start

1. Confirm entity type and role (buyer/seller)
2. Pull defined terms from APA ("Agreement," "Transaction," "Assets")
3. Draft title block, recitals, operative resolutions, execution provisions
4. Match signature block format to entity type
5. Verify statutory citation for consent-in-lieu authority [VERIFY]

## Core Workflow

### 1. Title Block

```
ACTION BY UNANIMOUS WRITTEN CONSENT
OF THE [BOARD OF DIRECTORS / MEMBERS]
OF [ENTITY LEGAL NAME]

Effective as of [DATE]
```

### 2. Recitals (WHEREAS Clauses)

Draft 3-5 recitals:

- [ ] Entity's role and counterparty's exact legal name
- [ ] Description of assets aligned with APA definitions
- [ ] Governing body reviewed transaction terms and materials
- [ ] Determination that transaction is in best interests of company and stakeholders
- [ ] Fairness opinions or financial analyses, if applicable

### 3. Operative Resolutions

| Resolution | Scope |
|---|---|
| **APA Approval** | Approve APA by name and date; authorize execution, delivery, performance; encompass pre-closing amendments not materially altering the transaction |
| **Ancillary Documents** | Authorize all transaction documents with omnibus language: "bills of sale, assignment and assumption agreements, TSAs, non-competition agreements, employment agreements, escrow agreements, certificates, opinions, and any other documents contemplated by or necessary to consummate the Transaction" |
| **Officer Authorization** | Authorize named officers (or all officers generally) to execute and deliver all documents and take actions deemed necessary or advisable; officer execution constitutes conclusive evidence of approval |
| **Ratification** | Ratify all prior actions by officers, employees, or agents in furtherance of the transaction |

### 4. Execution Provisions

- [ ] Consent in lieu of meeting pursuant to [DGCL Section 141(f) / applicable LLC statute / organizational documents] [VERIFY]
- [ ] Counterparts clause: any number of counterparts, each an original
- [ ] Electronic delivery: PDF/facsimile signatures effective as manual execution

### 5. Signature Blocks

| Entity Type | Signatories |
|---|---|
| Corporation | All directors (unless org docs permit less-than-unanimous consent) |
| LLC | Members, managers, or both per operating agreement |

Each block: signature line, printed name, title (if applicable), date.

## Template

```
ACTION BY UNANIMOUS WRITTEN CONSENT
OF THE [BOARD OF DIRECTORS / MEMBERS]
OF [ENTITY LEGAL NAME]

Effective as of [DATE]

The undersigned, constituting all of the [directors/members] of [ENTITY]
(the "Company"), hereby take the following actions by unanimous written
consent in lieu of a meeting pursuant to [STATUTORY CITATION] and
[Article/Section __] of the Company's [Bylaws/Operating Agreement]:

WHEREAS, the Company proposes to [acquire/sell] certain assets
[as more particularly described in the Agreement] [to/from] [COUNTERPARTY]
pursuant to that certain Asset Purchase Agreement dated [DATE]
(the "Agreement"); and

WHEREAS, the [Board/Members] [has/have] reviewed the terms of the
Agreement and related transaction documents and [has/have] determined
that the Transaction is in the best interests of the Company
[and its stockholders/members];

NOW, THEREFORE, BE IT RESOLVED, that the Agreement and the transactions
contemplated thereby are hereby approved and adopted in all respects,
and the Company is authorized to execute, deliver, and perform its
obligations under the Agreement;

RESOLVED FURTHER, that the Company is authorized to execute, deliver,
and perform all ancillary documents, including [LIST OR OMNIBUS LANGUAGE];

RESOLVED FURTHER, that [NAMED OFFICERS / any officer of the Company]
[is/are] authorized to execute and deliver, on behalf of the Company,
any and all documents, instruments, and certificates, and to take any
and all actions as such officer(s) may deem necessary or advisable to
carry out the intent of the foregoing resolutions, such execution to be
conclusive evidence of the approval thereof;

RESOLVED FURTHER, that all actions heretofore taken by any officer,
employee, or agent of the Company in connection with the Transaction
are hereby ratified, confirmed, and approved in all respects.

This consent may be executed in counterparts, each of which shall
constitute an original. Delivery by electronic transmission shall be
effective as manual delivery.

[SIGNATURE BLOCKS]
```

## Pitfalls

- **Defined term mismatch**: All terms ("Agreement," "Transaction," "Assets") must exactly match the APA. Do not introduce new definitions.
- **Wrong statutory citation**: Corporation uses DGCL Section 141(f) (Delaware) or state equivalent; LLC uses applicable LLC Act provision. Always confirm jurisdiction. [VERIFY]
- **Over-narrowing officer authorization**: Closing mechanics require flexibility for last-minute ancillary documents. Use broad authorization language.
- **Unanimous vs. majority**: Default to unanimous written consent. Flag if org docs permit a lower threshold — the title and recital language must change accordingly.
- **Restating deal terms**: Incorporate the APA by reference. Do not restate purchase price, asset descriptions, or other substantive business terms in the resolutions.
- **Secretary's certificate**: These resolutions typically attach as an exhibit to a secretary's/officer's certificate at closing. Confirm APA closing conditions for required format.